Participation in EU matters

The principle of subsidiarity states that the EU may issue regulations only in those areas that cannot be better regulated at the regional or state levels. This principle was introduced as early as the Maastricht Treaty and is considered one of the fundamental principles of the EU. With the entry into force of the Treaty of Lisbon, the participation rights of national parliaments to check compliance with the principle of subsidiarity were strengthened.

In order to ensure that the national Parliament has an influence on the shaping of European legislation, provision was made even in the course of Austria's accession to the EU for the Parliament to be able to influence the negotiating and voting position of the members of the Austrian government. This is because national government representatives have negotiating and voting rights in the Council of the EU and in the European Council.

By submitting an opinion, both the National Council and the Federal Council have the opportunity to give the responsible Federal Minister or Chancellor a negotiating position and even a voting position on issues they consider important in the negotiating phase in the Council of the EU or the European Council. This has given the Austrian Parliament a strong right to participate in EU matters. It can become active even before the decision is made at the EU level.

Such an opinion can also be binding. In this case, the Federal Chancellor or the competent Federal Minister may in principle deviate from it only for compelling foreign policy or integration policy reasons and must consult Parliament in this regard.

The prerequisites for a binding opinion in the National Council are:

• It is submitted on an EU initiative aimed at the enactment of a binding legal act.
• This binding legal act would have an impact on the enactment of federal laws in the area regulated by the legal act.

If the competent Federal Minister or the Federal Chancellor wishes to deviate from the opinion, they must refer the matter to the National Council again. If the effects concern provisions of Federal Constitutional Law, the competent Federal Minister may deviate only if the National Council does not object to this deviation within a reasonable period of time.

The prerequisites for a binding opinion in the Federal Council are:

• It is submitted on an EU initiative aimed at the enactment of a binding legal act.
• This binding legal act would require the enactment of federal constitutional provisions that would restrict the competence of the provinces in legislation or enforcement.

The competent Federal Minister or the Federal Chancellor may deviate only if the Federal Council does not object to this deviation.

The National Council and the Federal Council have the possibility to address the EU institutions directly if they wish to communicate their position on a specific EU initiative.

The background to this is, among other things, the "political dialogue" with the national parliaments initiated in 2006 by the President of the European Commission José Manuel Barroso. This so-called "Barroso Initiative" consisted of the European Commission promising, even before the Treaty of Lisbon came into force, i. e. on a voluntary basis, to communicate all proposals for legislative acts directly to the national parliaments and to give them the opportunity to submit an opinion.

In the interim, this communication has been enshrined in constitutional law and has become an indispensable part of the Austrian Parliament's participation rights. It can be addressed to any EU institution.

The European Commission, the European Parliament and the Council of the EU each send proposals for European legislative acts directly to the national parliaments.

If a parliament is of the opinion that a proposal contradicts the subsidiarity principle, it can object to it in an early warning mechanism. A parliament raises an objection by adopting a reasoned opinion. It can be submitted only within a period of eight weeks from the date on which a proposal is available in all language versions.

Any reasoned opinion submitted must be taken into account. In addition, there are two types of procedure that require a sufficient number of votes. This is because each national parliament has two votes, which in bicameral systems (as in the case of Austria) are divided between the two Chambers (one vote each for the National Council and the Federal Council).

If one third of the total number of votes is reached within the period of eight weeks, it is called a "Yellow Card." This means that the EU Commission has to reconsider its proposal. While there is no obligation to change the proposal, the decision on how to proceed must be justified in any case.

When an ordinary legislative procedure is used for the adoption of the proposal and reasoned opinions accounting for half of the total number of votes are received within eight weeks, it is called an "Orange Card." The Commission must then justify why its proposal is in line with the subsidiarity principle. This, together with the opinions of the national parliaments, is forwarded to the European Parliament and the Council of the EU.

If 55 percent of the Council members or 50 percent of the MEPs are of the opinion that the subsidiarity principle is violated by the Commission's proposal, the legal act cannot be adopted.

The Treaty of Lisbon introduced a special right of action for national parliaments if they believe that a European legislative act that has already been adopted violates the subsidiarity principle. They were granted a right of action before the Court of Justice of the European Union (ECJ), which deals exclusively with compliance regarding the subsidiarity principle. Such a "subsidiarity action" is aimed at declaring the legislative act "null and void." In other words, the ECJ annuls the legislative act if it finds in favor of the plaintiff parliament.

This right of action is available to each individual national parliament and even to each chamber of a national parliament, i. e. in Austria to both the National Council and the Federal Council, independently of each other. However, a time limit of two months after the enactment of the legislative act must be observed for bringing an action.

The responsibility for verifying whether proposals - before they are adopted - for European legislative acts comply with the subsidiarity principle has been assigned to the National Council’s Standing Subcommittee on European Union Affairs and to the Federal Council’s EU Committee. In contrast, the decision on whether to bring a subsidiarity action is made in the plenary in both Chambers.

Whether a subsidiarity action is brought by the National Council or the Federal Council depends on the initiative of the Members of the National Council or the Federal Council. In the National Council, such a motion must be introduced in a plenary session; in the Federal Council, the motion may also be introduced outside a plenary session. Each of the two Chambers can decide by a majority of its Members whether to bring such an action.

The ordinary Treaty revision procedure is a relatively complex procedure for amending the EU Treaties. In this procedure, an international Treaty drawn up by the Member States is signed by the respective government representatives and then approved in the national parliaments (so-called "ratification"), in some cases even by a referendum. An ordinary Treaty revision procedure is used mainly when the competences of the EU are to be extended or reduced.

A proposal for Treaty change is sent to national parliaments so that they are informed at an early stage.

If a European Convention is convened to prepare the draft Treaty, representatives of the national parliaments also participate in it.

The final text of the new Treaty is agreed by an intergovernmental conference. After the new Treaty text is signed by all government representatives, the governments submit it to their national parliaments for approval. Members of the European Parliament elected in Austria may participate in the corresponding debates of the National Council and the Federal Council in an advisory capacity if they have been nominated in advance by their parliamentary group in the National Council, or if the President of the Federal Council has granted them the right to speak after deliberation in the President‘s Conference.

There are two types of simplified procedures for revising the EU Treaties. In both cases, the European Council adopts a decision unanimously. This means that all government representatives must agree.

• First case: substantive amendments
  The European Council may amend individual provisions of the Treaty on the Functioning of the European Union (TFEU) on internal policies by decision. In doing so, however, it may not increase the competences of the EU.
• Approval of the decision
  The decision of the European Council is sent to the national parliaments, which must approve it. As such, there is still a prerequisite that all national parliaments approve it.

Second case: "passerelles" or "bridging clauses"

"Passerelles" or "bridging clauses" are those provisions that stipulate that the European Council can change - also unanimously by decision - conditions for decision-making procedures at the European level. This concerns:

1. the transition from unanimity to qualified majority voting in the Council of the EU (this is not possible in the area of CFSP); or

2. the transition from a special legislative procedure to the ordinary legislative procedure.

• Right of rejection of the national parliaments: The decision of the European Council requires the consent of the European Parliament. The consent of all national parliaments is no longer required. However, before the European Council can make the decision, the draft decision is sent to the national parliaments. These can decide within a period of six months whether they want to reject the initiative. Each national parliament has a right of rejection independently of the other national parliaments. If a single national parliament opposes, the amendment may not be adopted by the European Council.
• Authorization to approve a European Council initiative: The constitutional provisions also provide for a special right of participation for the Austrian Parliament: Even during the negotiations and the deliberations in the European Council on the proposal itself, the Austrian member of the government may consent to the initiative only if authorized to do so in advance by the National Council and the Federal Council (Art. 23i para. 1 B-VG).

Members of the European Parliament elected in Austria may participate in the corresponding debates of the National Council and the Federal Council in an advisory capacity if they have been nominated in advance by their parliamentary group in the National Council, or if the President of the Federal Council has granted them the right to speak after consultation in the President‘s Conference.